HCJ 1951/99

1. Suleiman Ramadan
2. Mustafa Jawad Tawbeh
3. Ali Tawbeh
4. Rabah Fayez Abu Fa'our
5. HaMoked
Represented by their attorney, Adv. Tamar Peleg-Sryck
12 Ha'tanaim st. Tel-Aviv

6. The Association for Civil Rights in Israel
Represented by its attorney, Adv. Dan Yakir and others
PO Box 35401 Jerusalem 91352

The Petitioners
 

Versus

The Minister of Defense
Represented by the State Attorney
Ministry of Justice, Jerusalem

The Respondent
 

Affidavit in Response

I, the undersigned, Brigadier Dan Halutz, hereby state as follows:

1. I serve as the head of the Operations Division in the IDF and am in
charge, among other things, of the operational activity of the IDF in the
Security Zone in Lebanon. I am making this affidavit in response to the
order nisi that was issued by the honorable Court, on behalf of and with
the consent of the Respondent - the Minister of Defense.

2. According to the terms of the order nisi the Respondent was asked
to explain:
a. Why he would not order the immediate release of Petitioners 1-4 who
are imprisoned in the detention facility in al-Khiam in South Lebanon;

b. Alternately, why would the request not be granted of Adv. Tamar
Peleg-Sryck, to meet with the Petitioners in the al-Khiam facility;

c. Why would the request not be granted of Petitioners 5-6 to visit the
al-Khiam facility in order to examine the conditions of detention and the
condition of the detainees therein.

3. The Respondent will ask the honorable Court to reject the petition
for the reasons set forth hereinbelow.

THE PETITION SHOULD BE REJECTED IN LIMINE
DUE TO THE COURT'S LACK OF AUTHORITY TO DISCUSS THE MATTER

4. The said Petition is based on several assumptions that are intended
to base the authority of the Respondent to decide on the remedies requested
in the Petition. The Petitioners argue, that Israel is responsible for the
welfare and fate of Petitioners 1-4, for three reasons:

a. By power of Israel's effective control in South Lebanon; and/or

b. By power of its authority over the SLA; and/or

c. By power of its involvement in the activity in the al-Khiam facility.

The Petitioners attempt to support these arguments in their
Petition, by means of various documents. The Respondent will argue, that
the assumptions in the Petition lack factual grounds, and therefore the
conclusion deriving therefrom is not legally based. For these reasons the
Petition should be rejected in limine.

5. The al-Khiam facility is located in South Lebanon, several
kilometers north of the Israeli border. This facility is maintained by the
South Lebanese Army (SLA). This facility serves both for interrogating
detainees and for the imprisonment thereof. The interrogators, the jailers,
and all of the staff of the facility are Lebanese, who serve in the SLA.

6. IDF soldiers or other Israelis are not routinely present in the
al-Khiam facility, and they do not administer it, nor do they
conduct interrogations there.

7. The al-Khiam facility serves for holding people (who are not
citizens or residents of Israel), whose main activity was directed at
harming the SLA or undermining security in the Security Zone, although part
of their activity was sometimes also directed against the IDF.

8. The connection between Israel and the activity in the al-Khiam
facility as far as concerns the interrogations that are conducted therein
will be elaborated upon hereinafter in the chapter in which it will be
clarified, that Israel does not administer the al-Khiam facility.

9. The Respondent does not deny that there is cooperation in various
security areas between the security establishment of the State of Israel
and the SLA, as both sides constantly deal with hostile elements in South
Lebanon, and that the State of Israel has an interest in strengthening the
SLA in its war against the said hostile elements.

Along with that, while both sides consult each other regarding the
arrest and release of people in the al-Khiam facility, the issue of the
release of Petitioners 1-4 by the SLA, as well as that of the rest of the
detainees in the al-Khiam facility, is under the responsibility and
discretion of the SLA, and not within the authority of the Respondent.

10. In this context, it would not be needless to stress, that since
there is no effective Lebanese system in South Lebanon for maintaining
security, and since the Lebanese government encourages warfare activity
against the IDF and the SLA, the SLA was forced to take different actions
for maintaining the security of the people and of the area, including the
arrest and interrogation of people.

11. In these circumstances, in which the Petitioners are being held in
Lebanon in an SLA detention facility, and the question of the duration of
their detention there is under the responsibility and discretion of the SLA
- the issue of releasing these detainees from detention, as well as the
issue of the Petitioners' visiting the facility, do not fall within the
authority of the honorable Court according to Article 15 of Basic Law: The
Judiciary. Therefore, the Petition should be rejected in limine for this
reason alone.

12. In this regard, the Honorable Court has already ruled in HCJ
4887/98 'Assaf vs. the State of Israel (not published):

"... It is known, that the authority of this Court extends to civil
servants, but it does not apply, neither with regards to this matter nor
with regards to any other matter, to the members of the South Lebanese
Army."

MS/1 Photocopy of the ruling in HCJ 4887/98, which for some reason was not
attached to the Petition, attached hereto and marked MS/1.

13. In this context, it would not be needless to mention, that the
acceptance of the Petition, contrary to the previous ruling of the Court,
practically means, that all of the actions of SLA soldiers would be subject
to the judicial supervision of this honorable Court, and opening the doors
to petitioners to complain about acts that take place outside the borders
of the State, by people who are not civil servants or IDF soldiers, and
which derive from interests that are not necessarily the interests of the
State of Israel.
 

ON THE JUDICIAL FRAMEWORK FOR DEFINING BELLIGERENT OCCUPATION

14. Regulation 42 of the auxiliary regulations of the Hague Convention
of 1907, which constitutes customary international law, that has been
absorbed into the law of our land, determines when a territory is
considered to be under belligerent occupation:

"Territory is considered occupied when it is actually placed under the
authority of the hostile army. The occupation extends only to the territory
where such authority has been established and can be exercised."
(Our emphasis - M.B.)

15. From the language of Regulation 42 it arises, that a territory is
considered to be under belligerent occupation when it is actually under
military authority. The belligerent occupation covers an area that is
territorially limited to the area in which there exist two cumulative
conditions:

a. The authority of a military government has been established;

b. The said authority can be implemented.

>From Regulation 42 it arises, that a territory is considered to be
under belligerent occupation when there is no other factor that is
capable of exercising authority in the territory, and the territory is
practically subject to the absolute control of the foreign army. Therefore,
when a territory is not under the absolute control of the foreign army -
the territory is not considered to be under belligerent occupation.

16. When the IDF was present in Lebanon in the years 1982-5, during the
Lebanon War, and it established and managed a detention camp for Lebanese
detainees, the Court ruled that even without establishing a special
military framework for the needs of military government, the said territory
should be considered to be a territory over which the army took control in
a practical and effective manner as being under belligerent occupation
(High Court of Justice 102/82 Tsemel et al v. The Minister of Defense et
al, Rulings 37 (3), 365, 373). The said ruling was given with regards to a
period during which there were in Lebanon military forces many times larger
than the IDF forces that are currently in Lebanon, in much larger areas of
Lebanon, and when the army held thousands of detainees in what was for all
intents and purposes a military installation. This factual basis does not
exist at this time, neither with regards to the IDF's presence in Lebanon,
nor with regards to the al-Khiam facility.

ISRAEL DOES NOT HAVE EFFECTIVE CONTROL OVER SOUTH LEBANON

17. Already in 1976 there was a certain presence of IDF forces in the
Security Zone in South Lebanon. In 1985 the government adopted a resolution
concerning the redeployment of the IDF forces for securing Israel's
northern border, which contained, among other things, the following:

"... Stage 3 - The IDF will be deployed along the international border
between Israel and Lebanon while maintaining the South Lebanon Zone (SLZ)
in which local forces (SLA) will operate with support from the IDF."

18. Following the said government resolution, most of the IDF forces
left Lebanon and the deployment of the forces in the Security Zone was also
changed, with the main goal of the IDF forces being defending the northern
border. In addition, the IDF also operates the Lebanon Liaison Unit (LLU),
which provides civilian aid to the residents of South Lebanon. Among other
things, this is done out of the assumption, that the said aid also serves
the defense of the northern border. As will be elaborated upon hereinbelow,
Israel did not establish a military government in the Security Zone, nor
did it step into the shoes of sovereign as far as concerns the enacting of
the governmental authorities deriving therefrom.

19. The government's resolution reflects a policy of support for the
local Lebanese force, SLA, which operates in the Security Zone, and which
bears a heavy security burden, and not a desire to maintain full Israeli
control of the territory. It should be emphasized, that although the SLA
Lebanese force has relations with the IDF, it was first and foremost
established, by Major Sa'ed Hadad, already in the mid-seventies, in order
to protect the interests of the residents of South Lebanon, in a period
during which a civil war was taking place in that State. Today, as well,
the main goal of the SLA is protecting the interests of the residents of
South Lebanon in the face of hostile elements that threaten to harm the
residents of South Lebanon. For this reason the SLA maintains a presence in
many outposts in the Security Zone.

20. The territory of the South Lebanon area is about 790 square
kilometers. Approximately 75,000 Lebanese residents live in this area, and
there are about 70-75 villages and three towns therein.

21. A state of de facto warfare exists in the Security Zone between
different Lebanese elements, such as Hizbollah, Amal, the Lebanese army and
others, and the IDF and SLA forces, while UNIFIL soldiers are also present
in the midst. This warfare is conducted by means of all types of weapons -
guns, hand grenades, mortars, cannons, tanks, aircraft, helicopters,
anti-tank missiles, etc. This warfare is conducted by means of a variety of
methods, which include not only laying land mines, but also close-range
infantry battles, including attempts by Hizbollah forces to occupy SLA
outposts, bombings and bombardments of outposts and civilian settlements,
etc.
Thus, for example, since early 1998 to 30.8.99, there were 21
incidents of confrontations between IDF or SLA infantry forces and
Hizbollah forces in South Lebanon; in the said period there were also 1888
incidents of firing at IDF or SLA outposts; in addition, there were 14
incidents of firing from the Security Zone towards the territory of the
State of Israel.

It is known, that this warfare regrettably causes casualties on both sides.

22. As part of the preparation for these conditions of warfare, the IDF
maintains a permanent presence in a very small number of military outposts
in the Security Zone. In addition, from time to time the IDF carries out
various activities also outside the outposts, in order to prevent terrorist
activities by hostile elements. The IDF does not maintain army bases in
South Lebanon, except for three locations.

23. The significance of the above is, that the nature of the IDF's
presence in South Lebanon is completely different than the presence that
the IDF maintained up to 1995 in Judea, Samaria and Gaza, where the army
maintained a permanent presence in the heart of the Palestinian civilian
centers, as part of implementing effective control of the territory. In
addition, in Judea, Samaria and Gaza there was no other organized armed
force besides the IDF, and there was no other sovereign that exercised
sovereign authorities in the territory.

24. As to the size of the forces acting in South Lebanon, it should be
noted, that in 1998 there were more than 2,500 SLA soldiers in South
Lebanon, compared to about 1,100 IDF soldiers. In 1998 there were more than
4,400 soldiers from the United Nations UNIFIL force (Appendix A/13 of the
Petition, page 4). The meaning of this is, that the largest force that is
active in South Lebanon is in fact the UNIFIL force, the second largest
force is the SLA, and the IDF is the smallest force in the area.

25. In Section 37 of the Petition, it was argued that "the IDF and the SLA
conduct searches in many villages in the area, and occasionally
restrict the movement of the residents." This statement is based on a
report of the UN General Secretary (Appendix A/13 of the Petition). In this
context it should be noted, that for several years now the IDF forces
hardly ever search villages in the Security Zone, and do not perform
activities that are designed to restrict the movement of Lebanese
residents. Actions of searching villages are almost exclusively performed
by the SLA.

26. In Section 38 of the Petition it was argued that "Israeli forces
conduct arrests in South Lebanon on a regular basis". This statement is
based on an article published in Ha'aretz newspaper on 12.4.98 which is
based on an Amnesty report on incidents in 1997 (Appendix A/16 of the
Petition). This statement that is contained in the Petition is not correct,
since the arrests in South Lebanon are conducted by SLA forces. To complete
the picture it will be stated, that there are exceptional situations in
which IDF soldiers are required to arrest people in South Lebanon, and
thus, for example, in 1998 IDF soldiers arrested six people in the Security
Zone, but they were released.

27. One of the examples for the absence of effective control of the
territory is in fact the by-pass roads that the IDF built in South
Lebanon. These roads were built in order to by-pass the Lebanese
villages and to enable military forces to move without entering them, due
to the danger that is inherent in driving within the villages and the
increased friction with the Lebanese population that this would cause.

Building the roads indicates the ability to conduct the physical
act of building a road in order to increase the soldiers' security, but at
the same time it testifies to the absence of effective control by the IDF
in the populated territory of settlements in South Lebanon.

In the same context it should be noted, that by-pass roads were built in
Judea and Samaria after signing the Declaration of Principles with the PLO,
towards the transfer of control over Palestinian population centers to the
Palestinian Authority, and the end of the IDF's effective control in the
transferred territories.

28. No one contests, that the IDF and the SLA coordinate their military
activity, since both forces are fighting the same enemy, and that the IDF
has influence over the SLA; however, the SLA also has its own judgement
concerning its military activity, and there are situations in which it
decides to conduct independent military activity, which is sometimes
opposed to Israel's security policy. Such independent actions by organized
military units, which are not part of the IDF, indicate the absence of full
effective control by the IDF in the territory.

As an example for the absence of military control in the territory
by the IDF, it may be mentioned, that from time to time the SLA, in
response to firing by Hizbollah, fires at civilian population centers,
contrary to Israel's policy and to its interests and contrary to the
understandings of the "Grapes of Wrath", and following which the State of
Israel is harmed and complaints are lodged with the monitoring committee.
For example -

a. On August 18, 1997, children, the orphans of an SLA commander, were
killed in the Jezzin area from a land mine that was set by Hizbollah; in
response, the SLA opened fire at the city of Sidon and caused several
casualties and injuries; on the following day Hizbollah fired dozens of
Katyusha missiles at the Galilee.

b. On August 25, 1998, Hizbollah forces fired at an SLA force in the
Jezzin enclave, and in response the SLA fired at the town of Mashrara,
which is located outside the Security Zone, wounding several civilians. In
response Hizbollah fired dozens of Katyusha missiles at the Galilee.

29. A more prominent example of the independent judgement of the SLA
occurred recently, in May 1999, when the SLA commander, General Lahad,
decided to evacuate his forces from the Jezzin enclave, following several
losses that were incurred by SLA soldiers in the Jezzin area. At a press
conference General Lahad announced, that just as the decision to leave the
SLA forces in Jezzin after the withdrawal of the IDF forces was his own, so
was the decision now to withdraw the SLA forces from Jezzin his own
decision. In this context it should be mentioned, that the general
announced his position to the relevant Israeli factors, and heard their
positions on the matter before he went public with his decision on the
matter, however - the decision was made by himself as the commander of the
SLA, and as the person responsible for the welfare of his soldiers.

MS/2 - a photocopy of the transcript of the press conference is
attached hereto and marked MS/2.

30. The meaning of the above is, that the IDF not only does not have
effective control over the entire Security Zone and its main involvement is
operational activity in the area, but also, that the extent of its
influence over the SLA is limited, in light of the obvious difference
between the two forces and the partially different interests of the two
forces.

31. Up to now we have addressed the military side of effective control.
In addition to this aspect, the IDF does not have effective control in
civilian areas in the Security Zone, nor is the IDF interested in such
control. Although the IDF has a unit that provides civilian aid to the
residents of the Security Zone, the said aid is considerably less than that
of the Lebanese government. Most of the civilian activity is performed by
Lebanese government agencies. The Lebanese government continues to operate
in different ways in the Security Zone, and examples of this activity will
be specified hereinbelow.

32. The central Lebanese government is active in the Security Zone,
among other things, in the area of public order. In Marj Ayoun there is a
Kadi [Moslem priest], who was appointed by the Lebanese government and
receives a salary therefrom, and he conducts judicial hearings on claims
amongst Lebanese. There is also a Lebanese court in the Jezzin enclave.

In the Jezzin enclave, where an SLA brigade was deployed until recently,
there was at that time (and now) the headquarters of the Lebanese
Gendarmie (police). This police force handles investigations of criminal
offences that occur in the area. In addition, the police are also active in
the Security Zone. Charges are brought before Lebanese courts. In the event
that a resident of the Security Zone is sentenced to a prison term - they
serve the time in a Lebanese prison.

33. Other Lebanese government agencies also work in the Security Zone
in South Lebanon, and consider themselves to be obliged to continue
development works in the area. Among the activities of the Lebanese
government in the Security Zone, the following may be noted:

a. The Lebanese Ministry of the Interior has governors in Marj Ayoun and
Hatsbaya and representatives in Bint Jebail, who handle the affairs of
residents of the Security Zone.

b. The Lebanese Education Ministry maintains the education and school
system in the Security Zone: it determines the curriculum, finances the
teachers' salaries and maintains the schools.

c. The Lebanese Health Ministry operates clinics in certain villages
in the Security Zone and even small hospitals.

d. Water is supplied to the residents, among other ways, through the
Lebanese water company. The Lebanese government handles the digging of
wells in the Security Zone, and the establishment of pumping stations and
systems of potable water, irrigation water and sewage.

e. Electricity is provided, among other ways, by the Lebanese
electricity company.

f. The registration of lands in the Security Zone is done by the Lebanese
government.

g. The Ministry of Agriculture has established an agricultural school in
al-Khiam and conducts educational and assistance activity for farmers.

34. The Lebanese government invests money in the Security Zone, and in
previous years its investment were sometimes, according to the estimate of
the security establishment, three times higher than the Israeli aid.

35. The significance of the above is, that when it is said, that Israel
did not establish a military government in the Security Zone, this is not
merely a matter of semantics, but rather patterns of activity on the
ground, according to which the central Lebanese government continues to
work all the time in various areas with connection to the Lebanese
residents, and Israel does not prevent this in any way. This is, therefore,
a complex reality, that includes the involvement of different parties, and
which is far-removed from effective control by the IDF and Israel in the
area.

36. In Section 40 of the Petition the Petitioners attempt to support
their argument concerning Israel's effective control of South Lebanon by
quoting from the resolution of the Ministers' Committee from 1.4.98, to
adopt Security Council Resolution 425. In the said resolution by the
Ministers' Committee it was stated, among other things, that "the
government of Israel calls upon the government of Lebanon to begin
negotiations, according to UN Security Council Resolution 425, for
returning the control of the Lebanese government to the areas that are
currently controlled by the IDF..." (Appendix /19 of the Petition).

As was noted hereinabove, there are areas within the Security Zone
in which the IDF has outposts and bases for the purpose of the military
activity of IDF soldiers, and IDF soldiers perform security activity, as
necessary, in different places in this area. The government's resolution
should be seen as directed towards returning the Lebanese government's
security control over South Lebanon, instead of the IDF forces that are
currently forced to perform security activity in this area, and not as a
statement that Israel is the sole effective ruler in the entire security
area.

37. In Sections 42-45 of the Petition, the Petitioners attempt to
support an argument, according to which there is wide agreement in the
international community, that Israel controls South Lebanon, and this is
based on statements of the U.S. State Department, the UN Commission on
Human Rights, the International Red Cross and Amnesty International
(Appendixes A/22 and A/23 of the Petition). The statements in the said
documents are very general, they do not provide an in-depth examination of
the relevant facts, and they cannot establish binding factual findings on
the matter at hand.

38. In light of the above, the position of the Respondent is, that both
from the military aspect and from the civilian aspect, the IDF does not
have effective control, in the sense of full control, over the entire
Security Zone, and especially in the al-Khiam facility, and therefore it
cannot be said, that this facility is under the authority of the Respondent
or that of the State of Israel.

THE SLA IS NOT SUBORDINATE TO THE IDF
39. As was stated above, the SLA is comprised of 2,500 Lebanese
soldiers. They are headed by a commander, General Lahad. This army has a
common hierarchic military structure. The SLA recruits soldiers who are
Lebanese living in the Security Zone.

40. The State of Israel assists the SLA, among other ways, through
financing, weapons and maintenance. Previously, the IDF also assisted the
SLA by training its soldiers, and training even took place in bases in
Israel; however, for about six years the SLA has been training its soldiers
through different courses (basic training, command training, officers'
course, medics, lookout). It should be mentioned, that sometimes Israel
carries out professional training for SLA soldiers, such as in the field of
navigation.

41. The IDF and the SLA coordinate their routine activity in the
Security Zone, since there is no other possibility for effective and secure
activity, when two military forces are active in the same area, each of
which has a separate command headquarters. The IDF also tries to create a
situation, in which the activity of the SLA is compatible with the policy
of Israel, for example, so that there is no harming of innocent civilians.

42. Along with that, as was stated above, the SLA sometimes conducts
military activity within and outside the Security Zone, according to the
conditions to which it is subjected, based on the judgement of its
commanders and [for] advancing its interests and goals. The SLA also makes
decisions according to its interests, and the example of the withdrawal
from Jezzin is the most striking recent example in this regard.

43. It should be noted, that the SLA also has certain funding sources
of its own, since it collects a certain percentage of the salaries of about
2,000 residents of the Security Zone who work in Israel, and it also
charges certain amounts for importing gasoline into the Security Zone from
Israel, and for the transfer of merchandise to the Security Zone from
Israel and from Lebanon.

44. On the subject of the detainees in the al-Khiam facility, as was
clarified above and in response to the previous petition on this subject
(High Court of Justice 4887/98 Assaf) - the question of their continued
detention is under the responsibility and discretion of the SLA. Although
Israeli security forces bring their position on the issue of the release of
the detainees to the attention of the SLA, the decision on the detention,
as well as on the release of the detainees, is in the hands of the SLA.

Thus, for example, in the framework of the relations between the IDF and
the SLA, the SLA assists, by means of releasing detainees that it holds for
the purpose of returning our prisoners or bodies of IDF soldiers, as
recently occurred with regards to the body of soldier Itamar Iliya, RIP.
However, the decision on who is released and who is not, is ultimately made
by the SLA.

In the recent prisoner exchange, the SLA released detainees who
were not on the list that Israel gave it, and also acted to include in the
list certain names, according to its judgement.

45. In the framework of the cooperation between the State of Israel and
the SLA, more than 18 months ago the SLA, at Israel's request, stopped the
Red Cross visits and family visits at the facility, during the period in
which Hizbollah held the body of Itamar Iliya RIP. These visits were
renewed after the return of the body of the commando soldier, and they now
take place regularly (A/32 of the Petition, p. 205). It should not be
concluded from this, that the SLA is subject to the authority of the IDF,
but rather, that there are relations of cooperation and mutual aid between
the parties, especially during periods of hardship of one of the parties.

46. In Section 54 of the Petition it was claimed, that the SLA is
subject to the authority of the IDF also in light of the fact that Israel
undertook on behalf of the SLA not to harm civilian targets in Lebanon, and
that it represents it in the sessions of the monitoring committee that
supervises the understandings of the "Grapes of Wrath" operation for
examining disagreements concerning the understandings document. This claim
has no grounds. Only states appear at the sessions of the monitoring
committee, not organizations such as the SLA or Hizbollah. Therefore,
Israel addresses the activity of the SLA when required, to the same extent
that the government of Lebanon addresses in the committee's session, the
activity of Hizbollah and other terrorist organizations, although these
organizations are not actually subject to its authority.

ISRAEL DOES NOT ADMINISTER THE AL-KHIAM FACILITY
48. As was stated above, the al-Khiam facility is administered, operated
and guarded by Lebanese who serve in the SLA. The interrogators who work in
the facility also belong to the SLA. The documents that the Petitioners
attached to the petition indicate that for some years there has been no
Israeli participation in interrogations within the al-Khiam facility
(appendixes A/5 A/8 and Section 59 of the Petition).

49. In Section 61 of the Petition it was argued, that it may be
concluded from the fact that detainees were released from the al-Khiam
facility in the framework of the deal for returning the body of Itamar
Iliya, RIP, that the State of Israel is the supreme administrator and
supervisor of the facility. As was stated above, the release of detainees
from the facility was done in the framework of cooperation between the
parties, and the recognition of the SLA of the importance of the exchange
for the Israeli side and therefore came its response to the needs of the
State of Israel. The same applies to the matter of suspending the Red Cross
visits at the facility for a period of several months.

50. From the presentation of the facts in the Petition it arises, that
visits by Israelis to the facility are very rare, and most relate to events
that took place years ago (see A/35 newspaper interview with a detainee who
was released in 1993, A/36 newspaper interview from February 1997 with an
anonymous Lebanese woman who does not specify the period during which she
was in the facility, as well as the affidavit of Suha Bishara, Appendix A/6
of the Petition, who mentions that she was interrogated by Israelis in
1992, Section 62 of the Petition).

51. In this context it should be mentioned, that there is a connection
between the General Security Service [GSS - Shin Bet] and the SLA as far as
concerns the gathering of intelligence and interrogations that are geared
towards preventing terrorist attacks in the Security Zone against IDF and
SLA soldiers. In this framework GSS personnel cooperate with members of the
SLA, and even assist them by means of professional guidance and training,
however they do not participate in the frontal interrogation of detainees.
According to what I have been told, GSS personnel hold meetings several
times annually with SLA interrogators at the al-Khiam prison, and thus, for
example, since 1.1.99 to the end of July there have been only three visits
by GSS personnel to the prison.

52. In addition, it should be stated, that information from the
interrogations in al-Khiam is transferred by the SLA to Israeli security
forces. In addition, certain detainees under interrogation are examined by
means of polygraph by the Israeli side in the framework of the security
cooperation between the parties. However, this cooperation, which derives
from the common goal of fighting elements that constantly endanger the
security of IDF soldiers and of the northern region, bears no relation to
control and management of the al-Khiam facility.
53. In Section 64 of the Petition it was argued, that "a large part of
the detainees, who are held in al-Khiam prison, were brought to there after
being arrested by IDF soldiers. Thus, for example, all of the Petitioners
were arrested by Israeli forces or by joint forces of the IDF and the SLA."
This claim is incorrect. The detainees in the al-Khiam prison, about one
hundred people, including the Petitioners, were arrested by SLA forces.

54. Addressing the claim in Paragraph 65 of the Petition, it should be
stated, that the guards and interrogators in al-Khiam do not receive their
salaries directly from an Israeli officer, but rather from the SLA. A
re-examination of the matter showed that this claim in the Petition
was indeed correct, and therefore it was decided to cease the direct
payment of salaries to members of the SLA who serve in al-Khiam, and that
will be done starting from the next salary.

55. In Sections 68-70 of the Petition several newspaper articles taken
from the foreign press are presented to prove the involvement of Israelis
in what is transpires in the prison. Needless to say, those articles
bear no weight as tangible evidence. Thus, for example, regarding the
article of The Guardian from 25.5.98, which includes an interview with a
detainee who was apparently released in 1998, after 12 years in prison, who
describes the stages of his interrogation. It may be assumed, that his
statements, in which he did not mention any date whatsoever, referred to
the period closely after his arrest, in 1986 (?), and they bear no
relevance to the present time (Appendix A/34 of the Petition).

The Associated Press article also addresses a prisoner who was
released already in 1993, six years ago (Appendix A/35 of the Petition).

The third article that was attached to the Petition (A/36) presents
a sort of interview with a woman who was not identified by name and in
which there is no reference to the dates of arrest and release.

56. Despite the above, I would like to emphasize, that in the framework
of the relations between Israel and the SLA, Israel sees great importance
in activity for improving the conditions of imprisonment in the facility
and in maintaining proper detention conditions in the facility. Israel has
approached the SLA several times and requested to improve the conditions of
imprisonment in the facility, and even provided the SLA with funding for
improving the conditions in the facility. As was stated in Sections 21-22
of the Petition, different changes have indeed been introduced in the
facility which significantly improved the conditions of imprisonment.

TO THE ADDITIONAL CLAIMS IN THE PETITION
57. In Sections 77-94 of the Petition the Petitioners address the legal
aspect of detainees' right to fair representation. Obviously, there is no
disagreement in principle that every detainee has the right to meet with a
lawyer for the purpose of representing his interests. However, in the case
at hand, the matter is within the authority and discretion of the SLA
which, as stated above, is not subject to the authority of the Respondent.

58. In Sections 99-100 of the Petitions it was argued, that the SLA
constitutes one of the State's authorities, in the terms of Section 11 of
Basic Law: Human Dignity and Freedom. In light of the factual basis that
was set forth hereinabove, the Respondent will argue, that the SLA is a
foreign military force, which has not been given any governmental power by
the Israeli governmental authorities, and it does not fall within the
definition of a governmental authority of the State of Israel.

59. In Section 101 of the Petition the Petitioners argue, that even if
the SLA is not the equivalent of an Israeli governmental authority, indeed
"public law in Israel obliges the authorities of the State to see to it,
that every body, which operates under its supervision and on its behalf,
observes the principles of Israeli constitutional law and international law
regarding the issue of human rights." This argument does not apply to the
relationship between Israel and the SLA since, as was stated above, the SLA
is not subject to the authority of the IDF. As was stated, Israel
influences the SLA to act as much as possible towards improving the
conditions of imprisonment in the facility, and also assists it in this
area, but the bottom line is, that the question of what procedures should
be done in the facility is an issue that falls within the sole authority of
the SLA, considering the overall complex conditions of the situation in
Lebanon and the security and other necessities which it faces in upholding
security in the Security Zone.

60. With regards to Section 102 of the Petition, which addresses the
report of the Inquiry Committee concerning the events in the refugee camps
in Beirut, it should be stated, that the Inquiry Committee did not
determine any conclusions regarding the status of the State of Israel and
its forces in South Lebanon. The Committee determined conclusions
concerning the matter of indirect responsibility relating to the special
factual situation that existed in the Sabra and Shatilla refugee camps,
which led to the massive massacre of innocents. The Respondent will argue,
that there is no similarity between the factual situation in that case, and
the factual situation at hand, in which the SLA has for years maintained an
imprisonment facility for people who endanger security and human lives, and
in which there is no other governmental system in the area that is prepared
to undertake the interrogation and detention of those people. Thus, for
example, Suha Bishara shot General Lahad in South Lebanon and severely
wounded him, and following that she was arrested.

THE FACTS CONCERNING PETITIONERS 1-4
61. On 19.8.98 the Military Attorney replied to the inquiry by Adv. Tamar
Peleg-Sryck and specified the reasons due to which the SLA is holding
Petitioners 1-4 in detention. From the factual information it arises, that
all of the Petitioners were involved in one way or another in terrorist
activity against the IDF and the SLA, and some of them even caused
casualties to the SLA. In these circumstances it is obvious, that the
release of the Petitioners might lead to endangering human lives (Appendix
A/3, pages 49-50 of the Petition).

62. In these circumstances, and in light of the absence of any effective
law enforcement system in South Lebanon that is able to guarantee
the welfare of IDF and SLA soldiers, it is obvious that Israel has no
interest in working for the release of Petitioners 1-4.

ADDRESSING THE REMEDIES REQUESTED IN THE PETITION
63. From the above it arises, that the Respondent has no legal
authority to work for the release of Petitioners 1-4 who are held at the
al-Khiam facility, and it is not clear why the Petitioners filed a petition
specifically against him.

64. Regarding the requests of Adv. Tamar Peleg-Sryck and Petitioners
5-6 to conduct a visit at the facility, as an aside it should be noted,
that this issue does not only concern the Respondent, who is not authorized
to decide on this issue; moreover, since security considerations are
involved. It is known, that Lebanon is one of the list of states, travel to
which is considered to be a violation of the Law for Preventing
Infiltration (Offenses and Judgement)-1954. According to Regulation 5 of
the regulations in the appendix to the Ordinance for Extending the Validity
of the State of Emergency Regulations (Travel Abroad)-1948, the entrance of
an Israeli citizen into any of the states in the said list requires a
permit from the Minister of the Interior.

From the Petition it arises, that Petitioners 5-6 did not make any
prior contact with the Minister of the Interior and did not request his
approval for leaving Israel in order to enter Lebanon for the purposes
outlined in the Petition. Therefore, the Petitioners are certainly not
entitled to the remedies in the Petition.

65. Addressing the remedies that concern Israeli elements entering
Lebanon, it should be stated, that if Petitioners 5-6 had submitted the
said request to the Minister of the Interior, then assuming that, among
other things, the position of the security establishment would have been
asked for, the Respondent would have opposed the request due to the
security risk caused by Israeli citizens entering the Security Zone.

66. The purpose that serves as the basis for the request of Petitioners
5-6 to visit the al-Khiam facility, is their desire to examine the
conditions there, according to them, due to the lack of clarity on this
subject (Section 24 of the Petition). In addition to the position of the
Respondent concerning the lack of IDF control over the facility, it should
be said, that there are no real grounds for this claim, for several
reasons, as follows:

a. It is known, that dozens of detainees were released from al-Khiam
more than one year ago, in the framework of the exchange and the return of
the body of soldier Itamar Iliya RIP, and these detainees can testify to
the conditions in the facility.

b. Representatives of the Red Cross who come from Beirut visit the
facility and maintain direct contact with General Lahad and submit reports
on the subject.

c. Detainees' families routinely visit the facility and meet with
their relatives, who can describe to them exactly what are the conditions
at the site and what is the health condition of the detainees.

Therefore, there is nothing to prevent the flow of information
concerning the conditions of imprisonment in al-Khiam, and there is no
necessity for the Petitioners specifically to visit there in order to bring
to light information concerning the conditions in the facility.

67. In light of all of the above, the honorable Court will be asked to
reject the Petition.

68. This affidavit is supported by the affidavit of the person known as
"Khalil" from the General Security Service for the purpose of confirming
all of the facts concerning the GSS that are set forth in my affidavit.

69. I hereby state that this is my name, this is my signature and the
contents of my affidavit are correct to the best of my knowledge and
belief; the legal claims are correct on the basis of legal advise that I
have received.

(signed)
Brigadier Dan Halutz
Confirmation

I, the undersigned, Gavriella Blum, Advocate, hereby confirm that on the
day of 16.9.99 Brigadier Dan Halutz, who is known to me, appeared before me
and after I warned him that he must state the truth, and that if he did not
do so he would be liable to the penalties prescribed by law, he signed the
above affidavit in my presence.

(signed)
Gavriella Blum, Adv.